Articles Posted in Wrongful Death

by

Accidents are a common occurrence for automobile drivers. In fact, in 2009, there were 73,900 injuries caused by automobile accidents in the state of Louisiana. However, when one is injured in such an accident, liability is often difficult to assign. In other words, it takes a fact-finder to determine who is at fault for the accident and who is liable for damages incurred by any injured party. In a recent Louisiana court case, a passing motorist was found to be 100% liable for injuries sustained by an individual while the other motorist involved in the accident was not liable for payment of any damages.

On August 18, 1999, William Boyd was injured in a motor vehicle accident that occurred on Louisiana Highway 14 in Jefferson Davis Parish. Boyd, who was an inmate assigned to highway clean-up at the time of the accident, was a passenger in the prison van driven by Joseph Deville. A sixteen-foot trailer, used to carry tools and supplies needed for the work detail was attached to the rear of the prison van; also, a dump truck followed the van. The driver of the prison van was in search of a clear spot on Highway 14 to pull over and allow the inmates to eat lunch. Mr. Deville located a clear, shady spot on the left of the Highway and, as the prison van began to exit to the left, a passing car driven by Rosalinda Broussard hit the rear left side of the van. As a result of the accident, Mr. Boyd sustained injuries and brought suit against Mr. Deville, Wackenhut prison facility, Ms. Broussard and the insurance companies for the parties. Before trial, Mr. Boyd settled his claims against Ms. Broussard and her insurer. However, he proceeded with his claims against the three remaining defendants arguing that Mr. Deville began to make his left turn well after Ms. Broussard began her passing maneuver. In the bench trial, the trial judge found Ms. Broussard to be 100% liable for the injuries and dismissed the case against the other defendants. This decision was upheld by the Court of Appeals.

In order to reverse a trial court’s findings, “a reasonable factual basis [must] not exist for the finding of the trial court” and “the record establishes that the finding is not clearly wrong.” Otherwise, the decision would be reversed. When imposing liability for an automobile accident, a plaintiff must establish that the defendant owed a duty to the plaintiff to exercise reasonable care while driving on the road and that duty was breached by failing to act like the average reasonably motorist. This failure must have proximately caused the plaintiff’s damages. While duty and breach are questions of law and determined by the court, causation and damages are questions left for the fact-finder to determine. In Louisiana, courts have found that allocating fault “is not an exact science nor is it a search for a precise ration. Instead, the courts must determine if the “allocated fault falls within a certain range that does not violate the manifest error rule. While finding that Mr. Deville was not at fault for the accident, the court quoted a Louisiana statute, which provides specific instruction for motorists in the left lane attempting to pass other vehicles, entitled “Limitations for passing on the left.” Since Ms. Broussard did not comply with this statute and Mr. Deville used his turn signal and began to turn before Ms. Broussard began her passing maneuver, she was found to be solely responsible for the accident.

Continue reading

by

In late 2010, the Court of Appeal of Louisiana, Fourth Circuit, shed some light on how the sale of a company may impact claims made by employees against the successor company in Pichon v. Asbestos Defendants AG. The plaintiffs in the case were the wife and children of the deceased Mr. Pichon. The plaintiffs alleged that Mr. Pichon was exposed to asbestos between 1955 and 2004. Mr. Pichon died in 2006 from Mesothelioma and Lung Cancer, which the plaintiffs argue was as a result of his exposure to asbestos. One of the defendants in the case was Detroit Diesel Corporation (DDC). DDC filed for summary judgment stating that there was no genuine issue of material fact and that it was entitled to a judgment as a matter of law. The Court broke its discussion down into two time periods: (1) Pre-1988 exposure by Mr. Pichon, before the creation of DDC, under which plaintiffs argued that DDC is liable under the theory of successor liability and (2) Post-1988, after the creation of DDC, under which plaintiffs argued that Mr. Pichon was exposed to asbestos as a result of DDC manufacturing.

In 1970, GM merged its Diesel Division with its Allision Division to create the Detroit Diesel-Allision Division. This division manufactured marine engines at Halter Marine. In 1988 GM and Penske formed DDC as a joint venture. Subsequently, DDC purchased the assets of most of the division that produced the marine engines. The sales agreement between DDC and GM stated that DDC would not be liable for GM’s conduct or for claims relating to products manufactured, distributed, or sold by GM prior to closing. The Court stated that there were three ways in which a successor company could be held liable for the actions of the selling company: (1) When the successor company clearly assumed the liability or obligations (2) When the buying company was merely a continuation of the selling company or (3) Where is it found that the transaction occurred only to avoid liability. The Court stated that it was clear that DDC expressly denied any pre-sale liability for the actions of GM. However, the plaintiffs argued that DDC’s liability was as a result of test number two, namely that DDC was a continuation of GM’s Diesel-Allision Division.

In response to plaintiffs argument concerning the second test for successor liability, the Court cited to a U.S. Supreme Court case that held that successor liability could be found on the basis of the buying company being a mere continuation of the selling corporation where the sale was for all of the company’s assets. The issue for the plaintiffs in this case was that DDC clearly did not purchase all of GM’s assets. Further, DDC did not even purchase all of GM’s assets concerning manufacturing of marine engines. DDC only purchase those assets relating to the Redford Operations. Because the plaintiffs were unable to provide evidence that DDC purchased all of GM’s assets, the Court granted DDC’s summary judgment on this claim and plaintiffs thus lost on this point.

Continue reading

by

Mesothelioma, also known as asbestos cancer, is cancer of the mesothelium, and is usually found on or around the lungs an individual has had prolonged exposure to asbestos in their homes or at work. Although the disease has become easier to detect in recent years, asbestos manufacturers have actually been sued by victims who have contracted the disease since as early as the 1920s and there is evidence that people were getting sick as early as the end of the 19th century.

Despite this long history, and high profile cases that have gone as far as the Supreme Court with nearly a billion dollars in compensation paid out, no Federal laws have been passed to delineate the compensation available to victims. The sad reality is that many suffering patients end up not getting the compensation they truly deserve due to the lack of regulation and confusion over what victims are entitled. This would seem to be an obvious case of injustice and is an unfortunate reality as working men and women simply cannot afford to aggressively pursue legal action against corporations, especially those that may have closed decades before.

The link between meso and asbestos was officially proven in the 1960s when scientists confirmed the presence of the disease in over 30 people who had been exposed to asbestos in South Africa. In 1962 mine workers were discovered who had mesothelioma and the condition was proven to cause cancer. Once workers are diagnosed with mesothelioma they can no longer work. This is just one reason why they must be properly compensated by their employers for their lost wages. Employers my be hesitant to pay damages; the reality is they could have provided the proper protective equipment to their workers that would have allowed them to work safely with asbestos and remain disease free. The question then significant to many is how you can tell if a person has contracted mesothelioma?

Continue reading

by

According to state law, the Louisiana Department of Transportation and Development (DOTD) has a duty to maintain the public highways in a condition that is reasonably safe for drivers exercising care and reasonable prudence, and even for those who are slightly exceeding the speed limit or who are momentarily inattentive. Ferrouillet v. State ex rel. DOTD. If the DOTD is aware of a defect in the roadway that cannot be immediately corrected, it must provide adequate warnings of the danger. The warnings should be “sufficient to alert the ordinary, reasonable motorist, based on considerations of probable volume of traffic, the character of the road, and the use reasonably to be anticipated.” Generally, in order for the DOTD to be held liable for damages, injuries, or death on a roadway, the plaintiff must prove: (1) that the thing that caused the damage was in the DOTD’s control; (2) that the thing that caused the damage amounted to a defect that presented an unreasonable risk of harm; and (3) that the defect was the actual cause of the plaintiff’s damages. It is well settled, however, that the DOTD’s duty “does not extend to protect motorists against harm which would not have occurred but for their grossly negligent operation of a motor vehicle.” The tragic case of Lyncker v. Design Engineering, Inc. provides an illustration of this point.

During the afternoon of September 15, 2004, William Lyncker consumed a substantial quantity of of beer as he made preparations to his home, boats, and business equipment for the arrival of Hurricane Ivan in New Orleans. Around 8:00 PM, Lyncker decided to drive to a family member’s restaurant to help with hurricane preparations there. The route to the restaurant would take him eastbound on Highway 90, which had earlier that day been closed by the DOTD approximately three miles east of the intersection with Highway 11 due to the installation of a floodgate in anticipation of the rising waters. Lyncker made his way toward Highway 90 on Highway 11 where, upon encountering a barricade, he drove off the road and over an earthen levee to avoid it. Lyncker continued toward the intersection with Highway 90 when he came upon additional warning signs and more barricades. Nevertheless, Lyncker turned onto Highway 90 and drove at speeds approaching 75 MPH. Lyncker did not slow down when he approached the caution-lit steel barricades that the DOTD had installed in front of the floodgate. In fact, Lyncker struck the barricades without even applying his brakes, and one of the barricades became trapped under Lyncker’s truck. Still, Lyncker continued speeding towards the Highway 90 floodgate as the barricade dragged beneath his truck. Lyncker’s truck was discovered crashed into the floodgate, which had collapsed. Lyncker was killed in the collision, and subsequent toxicology reports showed that Lyncker had a blood alcohol concentration of 0.21 percent (the legal limit is 0.08 percent) at the time of the accident.

Lyncker’s family filed a wrongful death action against Design Engineering, Inc., the Orleans Parish Levee District, and the DOTD alleging negligence in the construction and maintenance of the floodgate, as well as failure to warn. The DOTD filed a motion for summary judgment based on the Louisiana Code Section that provides immunity when a driver sustains damages or death while driving under the influence of alcoholic beverages or drugs and is over 25 percent negligent. La. Rev. Stat. ß 9:2798.4. The district court granted the motion, finding that “any reasonable fact finder would be compelled to find [Lyncker] in excess of twenty-five percent negligent.” On appeal, the Fourth Circuit noted that “since Mr. Lyncker crashed through the lighted barriers while heavily intoxicated and without slowing down, in this case, no warnings may have been enough to prevent the accident.” The court agreed with the district court’s finding that there was no issue of fact over Lyncker’s being at least 25 percent at fault and further concluded that “Lyncker’s intoxication is the sole and proximate cause of his fatal accident.” Accordingly, the court upheld the district court’s granting of summary judgment to DOTD under the immunity statute.

Continue reading

by

Mar’Kirney Holland, only four years old, died tragically in Orleans Parish after allegedly receiving negligent medical care in Lincoln Parish six years ago. This story provides a lesson on how important procedural motions are to a case. Plaintiffs often choose a certain jurisdiction because of different factors. Sometimes certain jurisdictions are chosen because of ease and convenience to parties and witnesses. Other times, plaintiffs have heard that certain courts or judges are more amenable and therefore, more likely, to rule in their favor. No matter the reasoning, deciding which court to proceed in is an essential decision that plaintiffs and plaintiffs’ attorneys must make. In this case, Holland v. Lincoln General Hospital, No. 2010-CC-0038 (La. Oct. 19, 2010), Defendants were successful in having the case moved from Plaintiffs preferred location of Orleans Parish to Lincoln Parish.

Mar’Kirney was born prematurely on November 12, 1999, and from an early age suffered from hydrocephalus, a condition where cerebrospinal fluid pools in the brain. At Tulane Hospital in New Orleans, doctors inserted a shunt to drain this fluid. Most, if not all, of the treatment related to the shunt took place at Tulane Hospital. The most recent “shunt revision” took place at Tulane Hospital two weeks before her death.

However, when Mar’Kirney began to suffer headaches, nausea, and vomiting, her mother, Latisha Holland, took Mar’Kirney to the closer hospital, Lincoln General Hospital. There, after fruitlessly waiting an hour, leaving, and coming back, Latisha claims that the doctor diagnosed Mar’Kirney with an upper respiratory infection. This was not the case. Mar’Kirney worsened and had to be transferred to Tulane Hospital after CT scans revealed that the shunt was blocked. Mar’Kirney died less than 24 hours after arriving at Tulane’s Pediatric Unit. Latisha brought a wrongful death and survival action against Lincoln General Hospital.

Continue reading

by

According to Houma Today, a 17-year-old boy from Cut Off was killed on October 22nd when the car he was riding in struck a utility pole. The boy, Edward Domingue, and his 15-year-old girlfriend were going to pick up pizza and movies when she lost control of the vehicle. Questions remain regarding why the girl was driving since she did not have a driver’s license. Further, the girl’s mother and owner of the vehicle, Gillian Reynolds, adamantly stated that she would not allow her daughter to drive. While the facts are still not clear, civil liability for the accident and Domingue’s death are also still up in the air.

Louisiana Revised Statute 32:52 states that no person shall operate a vehicle or allow another person to operate a vehicle owned or controlled by him if the driver is unlicensed. However, the simple fact that doing so is a statutory violation does not necessarily imply that the owner, or the unlicensed driver, was negligent. In Enlow v. Blaney, the Louisiana Third Circuit held that even though a 14-year-old was not licensed to drive, the fact that the vehicle’s owner allowed her to drive without a license was “immaterial and irrelevant” to the issue of negligence where her “conduct in driving without a license was not a cause-in-fact of the accident.” Following its rationale in Enlow, the Third Circuit ruled that even when the owner allows an unlicensed minor to drive her vehicle, she will not be liable for a resulting accident where evidence suggests that the minor was competent to drive and the fact the driver was unlicensed is not the cause-in-fact of the accident.

However, under general common law principles, if the owner knowingly allows a person who is incompetent to drive, such as by repeated instances of negligent or reckless conduct, the owner may be liable for negligence. This usually requires that the incompetent driver be “on a mission” for the owner, acting as the owner’s agent or employee, or the owner is negligent for entrusting his vehicle to the incompetent driver. In order to establish negligent entrustment, a plaintiff must show that the vehicle’s owner knew or should have known that the borrower is incompetent to drive. One case of particular interest is the 1993 case of Jones v. Western Preferred Casualty Co. In that case, the Louisiana First Circuit found that a 19-year-old vehicle owner did not negligently entrust his car to a 13-year-old where the 13-year-old had only driven a few times before, had been drinking, and the 19-year-old had never met the 13-year-old before that day.

Continue reading

by

This post constitutes part two of an introduction to mesothelioma:

Tissue changes resulting from asbestos exposure cause fluid to become trapped between the lung and the chest wall. This trapped fluid induces three symptoms which are often the initial symptoms a patient notices comprising coughing, chest pain, and shortness of breath. The trapped fluid creates uncomfortable pressure between the chest wall and lungs which the patient describes as chest pain under the rib cage. Coughing may accompany these symptoms which are typically the initial symptoms a patient experiences.

Additional symptoms may begin developing over several decades. For instance, weight loss may occur which is a symptom often seen in conjunction with cancerous tumors. Also, anemia may result when mesothelial cells comprising the pleura (lungs) and pericardium (heart) are involved. Blood clotting abnormalities typically present only in severe mesothelioma cases.

Continue reading

by

Asbestos was recognized to be a toxic substance as long ago as the 1890’s although it was not linked with specific diseases until recently. A multitude of lawsuits have been filed against asbestos manufacturers since 1929 with cases even traveling up to the United States Supreme Court. Nonetheless, no Federal Laws were ever created to address compensation for those suffering as a consequence of asbestos exposure leaving many sufferers without any assistance at all. Compensation is meant to address not only medical costs but also the pain and suffering resulting from the asbestos exposure as well as loss of income.

Although asbestos exposure is often ‘on the job’ exposure, a spouse simply washing the clothes of a family member subjected to ‘on the job’ asbestos exposure is likewise subjected to inhalation of asbestos dust and fiber. Even such seemingly minimal asbestos exposure places the spouse at risk for also succumbing to asbestos induced health problems. Residents living near factories or mines utilizing asbestos are also at risk for developing asbestos inhalation health disorders.

Unfortunately, asbestos inhalation may trigger a multitude of health problems. For example, a condition termed asbestosis refers to an inflammatory, chronic and prolonged lung disease that may inflict permanent lung damage. Moreover, asbestos exposure places an individual at risk for developing cancer. Due to the ubiquitous nature of asbestos and the magnitude of the damage it inflicts, compensation for asbestos related injuries lies in the billion dollar range. In general, the symptoms of asbestos related diseases include, but are not limited to, shortness of breath, wheezing, hoarseness, a persistent cough and/or coughing up blood, difficulty swallowing, chest pain, loss of appetite, weight loss, fatigue, or anemia.

Continue reading

by

As we have discussed previously on this blog, summary judgment is a procedural device for expediently resolving a case without a full trial where there is “no genuine issue of material fact.” Johnson v. Evan Hall Sugar Co-op, Inc., 836 So.2d 484, 486. (La. App. 1st Cir. 2002). It is well settled in Louisiana that summary judgment is appropriate if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact” and that party requesting judgment is entitled to it as a matter of law. See La. Code Civ. P. Art. 966(B). A trial court’s analysis of whether summary judgment is proper can involve the review of a considerable volume of documents which may contain conflicting information. The First Circuit Court of Appeals recently ruled on a summary judgment motion in a medical malpractice case that turned on the trial court’s treatment of the defendant doctor’s deposition and subsequent affidavit.

On June 9, 2007, Percy Bethley, 80, was admitted to Baton Rouge General Medical Center Mid-City (“BRGMC”) with breathing difficulties. He had a five-year history of serious heart and lung disease. Bethley underwent various treatments in the hospital and received a pulmonary consultation by Dr. Reza Sheybani. After examining Bethley, Dr. Sheybani decided to replace the Bethley’s tracheostomy tube. A respiratory therapist, Cecilia Eason, was brought in to perform the replacement. Eason had great difficulty with the procedure and, sadly, as a result of a series of further complications, Bethley expired.

Following Bethley’s death, his widow and children (the plaintiffs) filed a medical malpractice complaint with the Louisiana Patients’ Compensation Fund. The panel found that the evidence supported the possibility that Dr. Sheybani failed to meet the applicable standard of care and that his conduct had been a factor in Bethley’s death. The plaintiffs then filed suit against BRGMC and Dr. Sheybani, alleging that Dr. Sheybani and the hospital employees who treated Bethley negligently contributed to his death. BRGMC answered and filed a motion for summary judgment. Dr. Sheybani responded with a pleading that opposed summary judgment and which included a personal affidavit that contained his own expert medical testimony. This testimony was offered to prove that genuine issues of material fact existed in the case: Dr. Sheybani alleged that Eason, a BRGMC employee, had been negligent in her treatment of Bethley. BRGMC then filed a motion to strike the affidavit of Dr. Sheybani, which the trial court granted after a hearing. The trial court also granted BRGMC’s motion for summary judgment, and dismissed with prejudice the plaintiffs’ claims against BRGMC. Dr. Sheybani filed a motion for devolutive appeal.

Continue reading

by

According to state police, and reports in LaPlace’s L’Observateur, two men died and two others were injured in a car accident a little over a month ago on Louisiana Highway 3127 in Wallace.

At about 5:14 p.m. on Friday, September 24th, James Davis and Kerry Rodrigue of Plaquemine were killed when the Chevy Silverado they were riding in collided with an unoccupied, parked vehicle. Neither of the men were wearing a seat belt. Colby Landry, the driver of the truck, and front passenger Reggie Daigle sustained moderate injuries, and consequently, were wearing seat belts. According to investigators, Landry was trying to pass another vehicle when he lost control of the truck and crashed into the other vehicle, which was parked on the shoulder of the highway. Speed appears to be a factor in the crash.

This tragic accident brings questions to mind as to what liability attaches to a driver who acts negligently to bring about the death of his passengers? Also, in Louisiana, is liability reduced at all if the two passengers who were negligent themselves in not wearing their seat belts?

Continue reading
Contact Information
1140 St Charles Ave
New Orleans, LA 70130
Phone: (504) 521-6000
Fax: (504) 617-6300

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.

Please do not include any confidential or sensitive information in a contact form, text message, or voicemail. The contact form sends information by non-encrypted email, which is not secure. Submitting a contact form, sending a text message, making a phone call, or leaving a voicemail does not create an attorney-client relationship.

Copyright © 2016 – 2024, Berniard Law Firm
JUSTIA Law Firm Blog Design